Military and domestic reliance on drones faces legal questions

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The recent release of a Department of Justice white paper detailing justification for targeted drone strikes on American citizens abroad has brought the discussion on drone use to the front of American politics. Drone strikes are both lauded as an inexpensive and risk free strategy to fight terror abroad and as a cost-cutting, effective tool for police forces domestically. The adoption and sharp rise in drone use also left foreign policy analysts skeptical and many civil liberties groups in arms over the human and civil rights implications of targeted killings and constant surveillance.

Drones emerged as useful weapons early during the war on terror and initially targeted senior al-Qaida officials mostly in the Hindu Kush mountains of Afghanistan and Pakistan. Since then, the United States has expanded targeted killings by drones from Somalia to Yemen, relying on behavior ‘signatures’ and the Disposition Matrix, both murky criteria the Federal government uses to choose targets. The program is no secret to its targets, either. Letters allegedly written by Osama bin Laden revealed that drone strikes were killing senior officials faster than they could be replaced. More recently, the Associated Press recovered a memo in Timbuktu last week written by a senior al-Qaida official that gave 22 tips for avoiding drone strikes, including holding fake gatherings with dolls to mislead intelligence services and driving with mats strapped onto vehicles for camouflage.

The U.S.’s growing reliance on drones has led many experts to question the strategy. In a talk entitled “Foreign Policy Challenges for the Second Obama Administration” on February 23rd, Larry Diamond, a political science professor and senior fellow at the Hoover Institution, cited a “growing number of foreign policy experts, who are by no means shirking violence” who are calling into question “the net effect… in terms of blowback from overuse.”

Thomas Henriksen, another senior fellow at the Hoover Institution and foreign policy expert, is not as convinced.

“I think it’s been proven that there are few alternatives. If we don’t use the drones, if we don’t kill terrorists, that’s also a sign of weakness,” he said in an interview with The Stanford Review, citing a lack of American response to al-Qaida attacks in the late ‘90s as an encouragement for more attacks.

He did, however, note another danger: “There’s real concern that too many strikes could destabilize the [Pakistani] government. If it looks like they can’t protect their own borders and citizens, the government is called into question by the population”. Disapproval of American leadership has skyrocketed the last two years in Pakistan, up from 49% in 2011 to 92% in the latest Gallup poll.

Diamond also echoed the Libertarian complaint that Obama is getting “largely a free pass” on the drone issue.

“If Obama were a… conservative, can you imagine the reaction from the left?” he questioned. The targeted killings in Yemen of American citizen Anwar al-Aulaqi and, two weeks later, of his 16-year old-son Abdulrahman largely avoided the media spotlight in 2011. Now, however, critics are bringing them back into the spotlight as an example of the lack of checks against executive power to assassinate even American citizens. The idea of a drone court, which would hear and decide proposed assassination targets, has arisen as a solution. At the Atlantic Council, an international policy think tank, Shuja Nawaz recently called for a full transparency report listing the location, justification and result of every drone strike. Henrikson rejected this idea, claiming it would jeopardize our intelligence and strategy by giving too much information to enemies.

Drones have also become a controversial domestic debate as well. Evidence that police used a surveillance drone during the Dorner manhunt brought law enforcement drone use to the front of local and state politics. More than two dozen states already have bills aiming to reign in drone use; most proposed legislation would require a warrant before using drone surveillance. Some communities are taking action themselves. Charlottesville, VA recently prohibited evidence gathered by surveillance drones in criminal investigations.

Local communities seem wary of law enforcement. San Mateo County, which borders the Stanford campus, recently had its use of traffic cameras struck down in the California Supreme Court, and Santa Clara County has none in use, which makes acquisition of surveillance drones seem unlikely. The same cannot be said for UC Merced, UC Davis and Cal State Fresno, which all filed requests for drone use according to a report obtained by the Electronic Frontier Foundation. Though universities requesting permission to operate unmanned aircraft for academic and research purposes is not uncommon, the occasional case, such as Georgia Tech’s request on behalf of their police department for unmanned aircraft to “follow individuals on foot” and “locate threats,” has created a simmering distrust of drones in any form.

Many, including Henrikson, foresee the possibility that in a sufficiently dangerous situation, armed and lethal drones could be used within the United States against American citizens. While there is no documented precedent of using lethal drones on American citizens within our borders, murky statements from within President Obama’s circle have left groups such as the American Civil Liberties Union (ACLU) livid.

When asked in a Feb. 14 interview with the Huffington Post whether or not the U.S. government could ‘disappear’ a citizen of the United States on American soil, Nancy Pelosi responded “It depends.” In combination with the National Defense Authorization Act (NDAA), which allows the government to forego due process when the suspect is a ‘terrorist’, the executive branch has almost unchecked power to track and kill citizens.

Legal battles over the lack of checks and oversight of targeted killings and drone use are in full swing. While the al-Aulaqi family sues over the death of their 16-year-oldson, and Seattle has forced their police department to abandon their drone program, the Montana state legislature unanimously voted on Feb 24th to bar state officials from cooperating with federal agents in NDAA cases.
“What’s interesting to me,” Henrikson observed, “is how quickly these things have overwhelmed all consideration. It’s only been a little over a decade, yet they’ve now assumed enormous prominence.” Drones have passed the effectiveness test, but perhaps the more crucial test will be the legal battle they now face.